Re: [Patents] Pro-Swpat statements coming out

[James Heald <j.heald@ucl.ac.uk>]

Gérald Sédrati-Dinet (gibus) wrote:
> Hartmut Pilch a écrit :
>
> > At
> >  
> > http://www.confindustria.it/AreeAtt/DocUfPub.nsf/0/44c249c8d0469cd4c1256e750029faba?OpenDocument 
>
>
> Any english (or french) translation somewhere ?
>
> > you find a UNICE[1] style patent lawyer statement given in the name of 
> > the
> > italian industry on the 17th.  We can expect more such statements to be
> > coming out these days.
> >
> > [1] http://swpat.ffii.org/players/unice/

Google gives the following, but it needs afair bit of cleaning up.



Proposal of directive on the brevettabilità of the software. 
Observations of the Confindustria on the proposal of compromise 
introduced from the Irish Presidency 17 March 2004

        Observations generate them

      The rights of intellectual property and, in particular way, the 
licences constitute an important instrument of development and increase 
for the enterprises, above all the PMI, than, for means of they, they 
can obtain a consolidation of the own advantages of business (when these 
are base on quality and technical facts to you) not otherwise 
attainable. The rights of intellectual property concur, in fact, to 
realize a competitive advantage regarding the contenders and to obtain a 
wide protection in the comparisons of eventual imitatori and counterfeiters.

      The Italian enterprises see therefore with favor a directive of 
harmonization in matter of brevettabilità of the inventions realized for 
means of computer, than it is proposed to eliminate the ambiguities and 
uncertainties deriving from the adoption of various interpretative 
praxes from part of the Patent Offices of the States Members and to 
render therefore the within of application of the protection sure.

      The objective of the harmonization cannot but to be realized in 
evident contrast with the principles that resist the existing 
brevettuale system, that has demonstrated in the years to constitute an 
instrument adapted and an effective incentive for the world of the 
industry, is that large one, than that medium-small.

      The protection of the software constitutes an important element 
for the development of new technologies. Tasks, in order to only cite 
one of the possible examples, to the more and more frequent convergence 
between computer science and telecommunicationses that the offer renders 
possible and/or it I use from part of the enterprises of integrated 
packages software and services put into effect to you for means of 
electronic processors. In order to assure an adequate development of 
such new packages it is therefore necessary that it is guaranteed:
          o the possibility to accumulate the protection conferred from 
the copyright to that brevettuale for the inventions put into effect for 
means of electronic processors, inasmuch as the two protections regard 
various aspects and they are not in contrast;
          o a protection not only through rivendicazioni of 
dispositivo/sistema ( product ) and method ( process ), but also by 
means of rivendicazioni of "program for computer" ( "computer program 
product" ), that they allow to more directly verify and to hit eventual 
counterfeitings;
          o the brevettabilità of products and/or services that they 
preview (and/or they are works them to) the interoperabilità between 
various systems (still in the respect of ties over recalls to you).

      The Confindustria has already expressed the own contrarietà to 
the Resolution approved of from the European Parliament the 24 september 
2003, that it contrasts with the scopes of the directive and with the 
requirements as soon as mentioned and that behind constitutes a step 
regarding the principles wide accepted in all the orderings of the 
European countries in matter of brevettabilità of the inventions, not 
only of software , but more in a generalized manner in the field of the 
elaboration of they give to you.

      It is therefore to receive the attempt favorably to catch up a 
compromise carried out from the Irish Presidency that, 17 March 2004, 
has proposed a version of the directive, than also recependo some of the 
amendments votes to you from the Parliament to september 2003, discosta 
from the principles does not generate them in matter of brevettabilità 
of the inventions.

      The text of the proposal not escape however all the perplexities 
already raised from the previous ones draft and, in special way, from 
the Resolution of the European Parliament.

      In particular, the proposal of the Irish Presidency maintains the 
strong relative ambiguities to the possibility protect through the 
licence matters of which the copyright it allows the decompilazione for 
interoperabilità reasons.

      Moreover, admitted that one of objects you of the directive (like 
it is specified in Considering) the that one to prevent conflicting 
interpretations of how much previewed in the Convention for European 
Licence (CBE), goes found as the dispositions of the CBE and the praxis 
of the European Office of Licences (UEB) are already sufficiently clear 
and such not to demand ulterior precisazioni, and that such 
precisazioni, in case were not really coherent regarding the Convention 
and to the jurisprudence of the UEB, greater scapito intepretativa 
rigidity could involve one to of possible future evolutions of the same CBE.

      Therefore, in the light of the proposed text of compromise, 
thinks that:

            1. a directive on the brevettabilità of the inventions put 
into effect for means of processors based on a text as that one 
currently proposed would carry, instead of a harmonization, a greater 
confusion on that must in particular be the borders of the 
brevettabilità of such technologies (relatively to the copyright );

            2. one more faithful proposal to the CBE and the praxis of 
the UEB senz' other more would be adapted to the scopes;

            3. relative the confusorie parts and inique to derived ties 
to the brevettuale protection from the copyright would go eliminated.

      The proposal of compromise introduced from the Irish Presidency 
can therefore within constitute an acceptable base for the attainment of 
a common position the Council only if to it the corrections suggested of 
continuation will be brought.

      Observations on articles of the compromise proposal

      Art. 2, lett. b), and art. 3

      Some comments of the Italian Delegation arouse worry, that it 
supports the German demands for which to 19 favorable notes 17 and of 
the acceptation of amendments 107 and 69 votes from the European 
Parliament the slid september to you. Such amendments are in contrast 
with the spirit and with it objects you to it of the directive. Beyond 
introducing elements of insufficient clarity, as as an example the 
callback to definitions by now desuete of technical field ("use of 
forces of the nature in order to control physical effects"), they 
asserts in categorical way that the elaboration of gives to you does not 
constitute a "field of the technology", making useless therefore to the 
every root prescribed attempt of the brevettazione of such technologies, 
not only software but also hardware .

      It puts into effect them formulation of the art. 2 represent an 
acceptable solution and go therefore maintained. It would be, instead, 
opportune to restore the text of the art. 3 contained in the proposal of 
directive of February 2002.

      Art. 5

      The art. 5.1 opportunely preview the possibility to rivendicare, 
beyond to the programmed computers and to the processes it realizes to 
you through such computers, also the programs actions to being it loads 
to you on computer.

      It raises, however, many perplexities, with $R-with regard to 
such article, the position expressed from the Italian Delegation, 
brought back to famous the 20, that it proposes as requirement for the 
presentation of questions of licence whose rivendicazioni make reference 
to members software , it obligation to enclose an exemplary suit and 
working of such software with "not restrictive conditions of licence". 
Beyond constituting a evident discrimination regarding the inventions 
realized in other fields of the technology, in how much such contrary 
also to art the 27 of the Agreements TRIPS, this proposal would render 
the licence questions particularly voluminose and complex, without to 
bring some benefit in terms of greater clarity of the description.

      The new text of the art provokes numerous reservoirs also. 5.2, 
than, also ribadendo the possibility to rivendicare as software ( 
"computer program claims" ) the invention carry out for mean of 
processor, preview requirement and limitation approximately the way in 
which this rivendicazioni must be write up.

      The norm introduces therefore an exception regarding how much 
generally previewed for whichever other type of inventions, exception 
that cause a ingiustificata complication and an increase of the cost of 
preparation of a question of licence, that it goes to weigh on in 
particular way the PMI, beyond that on the independent inventors.

      It is therefore to prefer the solution proposed in the McCarthy 
Relationship, that it previewed, with reference to the art. 5.2 that:

            "To claim to to computer program, on its own, on to carrier 
or as to signal, shall be allowable only if such program would, when 
loaded or run on to computer, computer network or other programmable 
apparatus, implement to product or carry out to process patentable under 
Articles 4 and â".
      This solution would go resumption.

      Art. 6

      The art. 6 establish that the licence does not have to prevent 
the decompilazione for the interoperabilità, already allowed from the 
copyright .

      The usefullness of such norm is not clear that door to confuse 
the brevettuali aspects with those of copyright . The intention is 
evidently not to prevent through the protection patents them the 
decompilazione of software to fine of interoperabilità, already allowed 
from the directive on the copyright . Such forecast is however 
superfluous, in how much the reverse engineering of technologies 
patented already is allowed for scopes of study or search or also to the 
aim of an improvement of the existing technology (you notice yourself 
that nearly never the code source, necessary for the decompilazione, 
comes described in the licence and that therefore the decompilazione 
from part of thirds party can only happen after the purchase of a copy 
of the software , when the right of the holder of the licence already 
has been get exaustedded).

      Therefore, while the requirement of a such norm was 
comprehensible with $R-with regard to the author protection, since the 
realization of a copy of the software to the decompilazione ends would 
have been perseguibile, an analogous norm for the licences appears 
deprives of usefullness and introduces an ambiguity of regarding bottom 
the brevettuale proteggibilità of technologies that regard interfaces or 
instruments interoperabilità software.

      Art 7

      The art. 7 specify that the Commission monitorerà the effects of 
the brevettuale protection on the software, in particular relatively to 
the small and average industry.

      The callback to the medium small industry seems inopportune and 
misleading.

      Art 8

      The art. 8 preview that the Commission reports to the European 
Parliament and the Council on a sure number of issues.

      In the proposal they have been inserted some points that seem 
directed to verify the practical one of the UEB, in sight of one 
possible proposal of modification of the CBE. That seems to outside of 
proposed you of the directive, whose it objects to you it declares to 
you are to harmonize the praxes continuations from the national Patent 
Offices on the base of how much already previewed from the CBE and in 
the jurisprudence of the UEB.





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